____________________________________
)
SHED, CHERYL C., Plaintiff ) SUPERIOR COURT OF NEW JERSEY
57 Lightning Strike Way ) Law Division, Special Civil Part
Victory Lakes, NJ 08094 ) Gloucester County
609-562-1258 )
)
- ) Docket Number: L-004592-17
)
FARM, JAKE S., Defendant )
12 Khaki Place )
Sandyston, NJ 07827 )
848-339-1853 )
____________________________________)
MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
Pursuant to N.J. Ct. R. 4:6-2(e), Defendant Jake Farm moves to dismiss the Complaint filed by Plaintiff Cheryl Shed seeking damages for constructive eviction based on an express breach of the covenant of quiet enjoyment. The Court should dismiss Shed’s Complaint because, even if the facts as alleged in the Complaint are accepted as true and all reasonable inferences are drawn in Shed’s favor, the Complaint fails to state a claim for constructive eviction based on a breach of the covenant of quiet enjoyment. Specifically, Complaint failed to allege facts to support that (1) an act or omission by Farm created a defect that made the leased premises substantially unsuitable for the purpose for which it was leased, or that an act or omission by Farm seriously interfered with Shed’s beneficial enjoyment or use of the premises and (2) Farm was notified by Shed of the defect, asked to correct it, and failed to cure within a reasonable time. Therefore, the Court should grant Farm’s Motion to Dismiss and dismiss Shed’s Complaint with prejudice.
Statement of the Facts
Jake Farm (“Farm”) is the owner of seven boutique camping cabins along the Appalachian Trail in Sandyston, New Jersey. Farm annually rents out the cabins from Memorial to Labor Day weekend. On January 15, 2020, Cheryl Shed (“Shed”) leased Cabin #2 (“Cabin”) from Farm. The lease the parties entered into contains a boilerplate covenant of quiet enjoyment. Compl. 10. Shed took possession of the Cabin on Memorial Day weekend. From the time of her initial possession of the Cabin until July 3, Shed did not lodge any complaints about the neighboring tenants and their frequent overnight guests.
But on July 3, Shed alleges the noise level took an unexpected turn. For roughly a day and half, starting the evening of July 3 until the morning of July 5, Shed alleges that the noise from cabin #3 was excessive and unreasonable. Specifically, Shed alleges she was exposed to noise, music, and yelling. Allegedly, Shed contends that that the noise kept her from sleeping or being able to relax. Yet, no other residents were disturbed by the noise. Rather than contacting Farm to alert him to the noise disturbance, Shed claims she assumed Farm would not attend to her complaint due to the holiday. Shed then unilaterally vacated the Cabin on July 7.
On January 12, 2021, Shed filed a one-count Complaint for breach of the covenant of quiet enjoyment seeking damages based on Farm’s failure to “address and remedy excessive noise.” Farm now moves to dismiss the Complaint for failure to state a claim pursuant to N.J. Ct. R. 4:6-2(e).
Argument
The Court should dismiss Shed’s Complaint pursuant to N.J. Ct. R. 4:6-2(e) because Shed fails to allege facts to support that she was constructively evicted based on a breach of the covenant of quiet enjoyment. In ruling on a Motion to Dismiss, courts must “assume the facts as asserted by the plaintiff are true and give her the benefit of all inferences that may be drawn in her favor.” Banco Popular N. Am. v. Gandi, 184 N.J. 161,166 (2005). Complaint should be dismissed if it “states no basis for relief and discovery would not provide one” or if it fails to “suggest” a cause of action. Id. at 166, 184.
Here, the factual allegations in the Complaint clearly demonstrate that Farm did not breach the covenant of quiet enjoyment. To state a claim for constructive eviction based on the breach of covenant of quiet enjoyment tenant must show (1) that an act or omission by the Landlord made the premises substantially unsuitable for the purpose for which they are leased, or that it seriously interfered with their beneficial enjoyment of the premises; (2) landlord was reasonably notified of the breach and failed to cure within a reasonable time; and (3) the premise was vacated within a reasonable time after the remedy of constructive eviction became lawfully available. Reste Realty Corp. v. Cooper, 53 N.J. 444, 448 (1969).
Shed did not state a claim for constructive eviction based on a breach of the covenant of quiet enjoyment because (1) the isolated noise disturbance was not continuous, or repetitious, nor did it substantially interfere with Shed’s use and enjoyment of the Cabin; (2) Farm was not given notice of the defect and thus did not have the opportunity to cure. Accordingly, Farm’s Motion to Dismiss should be granted and Shed’s Complaint should be dismissed.
- Isolated Noise Disturbance was Not a Breach of the Covenant of Quiet Enjoyment because it was not continuous, repetitious, nor a substantial inference.
A tenant cannot claim a breach of the covenant of quiet enjoyment unless an act or omission by the landlord makes the leased premises substantially unsuitable for the purpose for which it is leased, or it seriously interferes with the beneficial enjoyment of the premises. Reste Realty Corp., 53 N.J. at 446. Excessive loud noise by a neighboring tenant that is harmful to the health and well-being of a person of ordinary sensitivity, might constitute a breach of the covenant of quiet enjoyment if the landlord fails stop the noise condition. Berzito v. Gambino, 63 N.J. 460, 469 (1973). However, noise only constitutes a breach of the covenant of quiet enjoyment if it is continuous or repetitious. see Gottdiener v. Mailhot, 179 N.J. Super. 286 (App. Div. 1981) (holding continuous noise disturbances and other harassing conduct by neighboring tenant for over a year constituted a constructive eviction); but see Millbridge Apts. v. Linden, 151 N.J. Super. 168 (Dist. Ct. 1977) (holding loud noises by neighboring tenant did not constitute a constructive eviction where noise disturbance was excessive in only one instance).
Here, Farm did not breach the covenant of quiet enjoyment because Shed failed to allege facts to support that an act or omission by Farm caused a substantial inference or deprivation of her beneficial enjoyment of the Cabin. Reste Realty Corp., 53 N.J. at 444. Rather, a neighboring tenant made excessively loud noise in only one instance. see Millbridge Apts. 151 N.J. Super. at 169. Although Farm might be responsible for excessive and continous noise by a cotenant, it was not necessary here because it was only excessive in one instance and thus not a continous or repetitious condition. See id. In fact, prior to the isolated incident, Shed did not lodge any complaints about noise. Because there is no alleged pattern of a continuous or repetitious noise disturbance by the neighboring tenant, Shed failed to allege facts to support that Farm breached the covenant of quiet enjoyment.
- Farm did not Breach the Covenant of Quiet Enjoyment because Shed failed to give Farm Notice of the Alleged Breach and the Opportunity to Cure.
A prerequisite for bringing a claim for a breach of the covenant of quiet enjoyment is that a tenant must allege that they provided the landlord with reasonable notice of any alleged defects and requested its correction. Berzito v. Gambino, 63 N.J. at 469. Further, a tenant that provides actual notice, must give landlord a reasonable period of time to cure a defect that is within their control. Gottdiener v. Mailhot, 179 N.J. Super. at 286. A landlord may be responsible for abating excessive and repetitious noise disturbance created by a neighboring tenant. New Jersey Administrative Code § 5:10-6.2. However, tenant’s failure to notify landlord of any excessive and repetitious noise precludes tenant from entitlement to constructive eviction. Berzito v. Gambino, 63 N.J. at 469.
Here, Shed failed to meet the prerequisite element of her claim for constructive eviction based on breach of the covenant quiet enjoyment because she did not allege that she provided Farm with notice of the alleged defect. See id. Instead, Shed assumed Farm would not mitigate the nuisance, unilaterally vacated the premise, and disregarded Farm’s right to be notified of any substantial nuisances and his right to remedy it. Id. Thus, because Farm was not notified of the alleged breach and did not have the opportunity to cure due to Shed’s hasty unilateral departure, Shed failed to allege facts to support her claim for constructive eviction based on the breach of the covenant of quiet enjoyment.
Conclusion
The Court should grant Farm’s Motion to Dismiss and dismiss Shed’s Complaint. The factual alleges in the complaint utterly fail to support Shed’s claim for constructive eviction based on the covenant of quiet enjoyment. Shed failed to allege facts to support that (1) the noise disturbance caused by a neighboring tenant was repetitious or continuous such that it substantially interfered with her use and quiet enjoyment of the property, and (2) Farm was given notice of the noise disturbance and thus a reasonable opportunity to cure. Accordingly, Shed fails to allege facts to support a claim for constructive eviction based on an express breach of covenant of quiet enjoyment.
Dated: February 22, 2021 Respectfully submitted,
JAKE FARM, Defendant
By his Attorney,
/s/
51 Madison Ave
22nd Floor
New York, NY 10010
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was served on the following attorney of record for the Plaintiff by mail on February 23, 2021:
Ben Surance, Esq.
NJ Attorney ID # 1234567
Surance & Sons, P.C.
5150 State Street
Trenton, NJ 08604
609-455-3250 ext. 0300
/s/
51 Madison Ave
22nd Floor
New York, NY 10010
____________________________________
)
SHED, CHERYL C., Plaintiff ) SUPERIOR COURT OF NEW JERSEY
57 Lightning Strike Way ) Law Division, Special Civil Part
Victory Lakes, NJ 08094 ) Gloucester County
609-562-1258 )
)
- ) Docket Number: L-004592-17
)
FARM, JAKE S., Defendant )
12 Khaki Place )
Sandyston, NJ 07827 )
848-339-1853 )
____________________________________)
MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
Pursuant to N.J. Ct. R. 4:6-2(e), Defendant Jake Farm moves to dismiss the Complaint filed by Plaintiff Cheryl Shed seeking damages for constructive eviction based on an express breach of the covenant of quiet enjoyment. The Court should dismiss Shed’s Complaint because, even if the facts as alleged in the Complaint are accepted as true and all reasonable inferences are drawn in Shed’s favor, the Complaint fails to state a claim for constructive eviction based on a breach of the covenant of quiet enjoyment. Specifically, Complaint failed to allege facts to support that (1) an act or omission by Farm created a defect that made the leased premises substantially unsuitable for the purpose for which it was leased, or that an act or omission by Farm seriously interfered with Shed’s beneficial enjoyment or use of the premises and (2) Farm was notified by Shed of the defect, asked to correct it, and failed to cure within a reasonable time. Therefore, the Court should grant Farm’s Motion to Dismiss and dismiss Shed’s Complaint with prejudice.
Statement of the Facts
Jake Farm (“Farm”) is the owner of seven boutique camping cabins along the Appalachian Trail in Sandyston, New Jersey. Farm annually rents out the cabins from Memorial to Labor Day weekend. On January 15, 2020, Cheryl Shed (“Shed”) leased Cabin #2 (“Cabin”) from Farm. The lease the parties entered into contains a boilerplate covenant of quiet enjoyment. Compl. 10. Shed took possession of the Cabin on Memorial Day weekend. From the time of her initial possession of the Cabin until July 3, Shed did not lodge any complaints about the neighboring tenants and their frequent overnight guests.
But on July 3, Shed alleges the noise level took an unexpected turn. For roughly a day and half, starting the evening of July 3 until the morning of July 5, Shed alleges that the noise from cabin #3 was excessive and unreasonable. Specifically, Shed alleges she was exposed to noise, music, and yelling. Allegedly, Shed contends that that the noise kept her from sleeping or being able to relax. Yet, no other residents were disturbed by the noise. Rather than contacting Farm to alert him to the noise disturbance, Shed claims she assumed Farm would not attend to her complaint due to the holiday. Shed then unilaterally vacated the Cabin on July 7.
On January 12, 2021, Shed filed a one-count Complaint for breach of the covenant of quiet enjoyment seeking damages based on Farm’s failure to “address and remedy excessive noise.” Farm now moves to dismiss the Complaint for failure to state a claim pursuant to N.J. Ct. R. 4:6-2(e).
Argument
The Court should dismiss Shed’s Complaint pursuant to N.J. Ct. R. 4:6-2(e) because Shed fails to allege facts to support that she was constructively evicted based on a breach of the covenant of quiet enjoyment. In ruling on a Motion to Dismiss, courts must “assume the facts as asserted by the plaintiff are true and give her the benefit of all inferences that may be drawn in her favor.” Banco Popular N. Am. v. Gandi, 184 N.J. 161,166 (2005). Complaint should be dismissed if it “states no basis for relief and discovery would not provide one” or if it fails to “suggest” a cause of action. Id. at 166, 184.
Here, the factual allegations in the Complaint clearly demonstrate that Farm did not breach the covenant of quiet enjoyment. To state a claim for constructive eviction based on the breach of covenant of quiet enjoyment tenant must show (1) that an act or omission by the Landlord made the premises substantially unsuitable for the purpose for which they are leased, or that it seriously interfered with their beneficial enjoyment of the premises; (2) landlord was reasonably notified of the breach and failed to cure within a reasonable time; and (3) the premise was vacated within a reasonable time after the remedy of constructive eviction became lawfully available. Reste Realty Corp. v. Cooper, 53 N.J. 444, 448 (1969).
Shed did not state a claim for constructive eviction based on a breach of the covenant of quiet enjoyment because (1) the isolated noise disturbance was not continuous, or repetitious, nor did it substantially interfere with Shed’s use and enjoyment of the Cabin; (2) Farm was not given notice of the defect and thus did not have the opportunity to cure. Accordingly, Farm’s Motion to Dismiss should be granted and Shed’s Complaint should be dismissed.
- Isolated Noise Disturbance was Not a Breach of the Covenant of Quiet Enjoyment because it was not continuous, repetitious, nor a substantial inference.
A tenant cannot claim a breach of the covenant of quiet enjoyment unless an act or omission by the landlord makes the leased premises substantially unsuitable for the purpose for which it is leased, or it seriously interferes with the beneficial enjoyment of the premises. Reste Realty Corp., 53 N.J. at 446. Excessive loud noise by a neighboring tenant that is harmful to the health and well-being of a person of ordinary sensitivity, might constitute a breach of the covenant of quiet enjoyment if the landlord fails stop the noise condition. Berzito v. Gambino, 63 N.J. 460, 469 (1973). However, noise only constitutes a breach of the covenant of quiet enjoyment if it is continuous or repetitious. see Gottdiener v. Mailhot, 179 N.J. Super. 286 (App. Div. 1981) (holding continuous noise disturbances and other harassing conduct by neighboring tenant for over a year constituted a constructive eviction); but see Millbridge Apts. v. Linden, 151 N.J. Super. 168 (Dist. Ct. 1977) (holding loud noises by neighboring tenant did not constitute a constructive eviction where noise disturbance was excessive in only one instance).
Here, Farm did not breach the covenant of quiet enjoyment because Shed failed to allege facts to support that an act or omission by Farm caused a substantial inference or deprivation of her beneficial enjoyment of the Cabin. Reste Realty Corp., 53 N.J. at 444. Rather, a neighboring tenant made excessively loud noise in only one instance. see Millbridge Apts. 151 N.J. Super. at 169. Although Farm might be responsible for excessive and continous noise by a cotenant, it was not necessary here because it was only excessive in one instance and thus not a continous or repetitious condition. See id. In fact, prior to the isolated incident, Shed did not lodge any complaints about noise. Because there is no alleged pattern of a continuous or repetitious noise disturbance by the neighboring tenant, Shed failed to allege facts to support that Farm breached the covenant of quiet enjoyment.
- Farm did not Breach the Covenant of Quiet Enjoyment because Shed failed to give Farm Notice of the Alleged Breach and the Opportunity to Cure.
A prerequisite for bringing a claim for a breach of the covenant of quiet enjoyment is that a tenant must allege that they provided the landlord with reasonable notice of any alleged defects and requested its correction. Berzito v. Gambino, 63 N.J. at 469. Further, a tenant that provides actual notice, must give landlord a reasonable period of time to cure a defect that is within their control. Gottdiener v. Mailhot, 179 N.J. Super. at 286. A landlord may be responsible for abating excessive and repetitious noise disturbance created by a neighboring tenant. New Jersey Administrative Code § 5:10-6.2. However, tenant’s failure to notify landlord of any excessive and repetitious noise precludes tenant from entitlement to constructive eviction. Berzito v. Gambino, 63 N.J. at 469.
Here, Shed failed to meet the prerequisite element of her claim for constructive eviction based on breach of the covenant quiet enjoyment because she did not allege that she provided Farm with notice of the alleged defect. See id. Instead, Shed assumed Farm would not mitigate the nuisance, unilaterally vacated the premise, and disregarded Farm’s right to be notified of any substantial nuisances and his right to remedy it. Id. Thus, because Farm was not notified of the alleged breach and did not have the opportunity to cure due to Shed’s hasty unilateral departure, Shed failed to allege facts to support her claim for constructive eviction based on the breach of the covenant of quiet enjoyment.
Conclusion
The Court should grant Farm’s Motion to Dismiss and dismiss Shed’s Complaint. The factual alleges in the complaint utterly fail to support Shed’s claim for constructive eviction based on the covenant of quiet enjoyment. Shed failed to allege facts to support that (1) the noise disturbance caused by a neighboring tenant was repetitious or continuous such that it substantially interfered with her use and quiet enjoyment of the property, and (2) Farm was given notice of the noise disturbance and thus a reasonable opportunity to cure. Accordingly, Shed fails to allege facts to support a claim for constructive eviction based on an express breach of covenant of quiet enjoyment.
Dated: February 22, 2021 Respectfully submitted,
JAKE FARM, Defendant
By his Attorney,
/s/
51 Madison Ave
22nd Floor
New York, NY 10010
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was served on the following attorney of record for the Plaintiff by mail on February 23, 2021:
Ben Surance, Esq.
NJ Attorney ID # 1234567
Surance & Sons, P.C.
5150 State Street
Trenton, NJ 08604
609-455-3250 ext. 0300
/s/
51 Madison Ave
22nd Floor
New York, NY 10010